Power of attorney (POA) is an important and powerful document that gives one person (the agent) the right and ability to make decisions on behalf of another (the principal). Due to the seriousness of such a legal document, many states in the US require a power of attorney document to be notarized.
In this article, we’ll give you a breakdown of what notarization is and how it can protect you legally when creating a POA. This is why knowing how to write a power of attorney form is so essential.
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Power of Attorney: What Is It?
A power of attorney or POA is a legal document that allows an agent to make decisions on behalf of another individual. These decisions may regard anything from medical and healthcare decisions to financial matters, legal disputes, or real estate decisions.
There are many types of power of attorney, and each one can vary in duration, the matters included, i.e., healthcare, financial, etc., and the conditions on which it comes into play. All POAs end upon the death of the principal, whether durable or not.
What Is Notarization?
Notarization refers to the process of having a document authenticated by an individual known as a notary public. A notary public is someone who has been authorized by the state and may witness the signing of important documents as well as administer oaths.
A notarized document means that the notary public has verified the identity of the signers, confirmed that they are signing voluntarily, and ensured that all signers understand the document they are signing.
How Notarization Protects You Legally
Notarization isn’t always required by state law for POAs, but there are some reasons why getting your POA notarized is a good idea anyway. Below are the ways in which notarization can protect you legally.
- Authentication: The main role of notarization is to authenticate the document. As the notary public is a state-appointed individual, they have the opportunity to verify both signers and ensure they are who they say they are.
- Preventing fraud and abuse: POAs must be signed voluntarily. Due to the sensitive nature of what they allow, a court must be convinced that the principal signed voluntarily and wasn’t forced to do so by those looking to take advantage of them. A public notary will ensure that the principal signs voluntarily and is trained to identify signs of duress and incapacity. This means they can also refuse to sign if they believe the principal is being taken advantage of.
- Protection against challenges and disputes: A notarized POA is much less likely to fall to challenges or disputes in court. Due to the authenticity that a notarization lends a POA, it can make defending the POA much more straightforward and defend the intent of the principal.
- Admissibility in courts: As we have mentioned, some states do require the notarization of POAs, but even in states where it is not a requirement, courts will be more likely to support a notarized document as it stands out as being trustworthy.
- Legal recognition: A notarized POA is also more likely to be recognized by banks, healthcare providers, financial institutions, and any other body that may be dealt with in the course of your role as an agent.
Essentially, a notary public is a third-party witness who can attest to the authenticity of the document. They are trusted by the state government and expected to carry out their job with integrity, making a notarized document more legally protected.
Consequences of Not Notarizing Your Power of Attorney
The consequences of not notarizing a POA are as follows.
- Invalidity: In some states, a POA that is not notarized is not legally valid. Check local laws to see if notarization is required in your state.
- Risk of coercion: Often, POAs are put in place for people whose mental capacity is declining. A non-notarized POA may be created under coercion. However, notaries are trained to identify signs of coercion and can stop this abuse in its tracks.
- Challenges by other family members and beneficiaries: While any POA may be challenged, a POA that has not been notarized will be much less likely to be given any weight in court.
- Limited use: While some states don’t require notarization, many institutions do. This means that you could reach a critical point in decision-making only to find that your un-notarized POA isn’t accepted by the institution you’re working with.
Final Thoughts
A power of attorney is an important document that is designed to protect the principal in different ways. For this reason, notarization is critical. Even if it is not required by state law, it can ensure you are legally protected in more ways than if it is not notarized.
A notary public can protect the principal, ensure they sign voluntarily, and act as a trusted witness so that your POA stands up in court and cannot be disputed.
